RE: Advisory Opinion: N. C. Gen. Stat. Chapter 122C (House Bill 381)

Dear Mr. Winstead:

In your 8 May 2002 letter you asked for an opinion on behalf of a member of the Lee-Harnett Mental Health, Developmental Disabilities, and Substance Abuse Services Area Board. Specifically, the board member wants to know whether “Individual counties or groups of counties may be exempted from the mandates of Chapter 122C of the North Carolina General Statutes with regard to the establishment of mental health authorities.” In addition, as the Board’s attorney, you inquire whether G.S. §153A-77(a) violates Article II, Section 24 of the North Carolina Constitution. For the reasons that follow, it is our opinion that the application of

G.S.

§153A-77(a) would not violate the Constitution. Further, it is our opinion that while the law does allow for alternative governing structures, this does not constitute an exemption from “the mandates of Chapter 122C” since all counties must still provide the same mental health services regardless of the governing structure they use.

As you know, Chapter 122C was amended significantly during this past legislative term by H.B. 381 (enacted as S.L. 2001-437). In addition to all the other changes it wrought, and directly relevant your issues, H.B. 381 now permits counties, subject to certain prerequisites, to choose to operate their own Mental Health, Developmental Disabilities, and Substance Abuse Services (MH,DD,SAS) programs, rather than using the vehicle of an area authority. This portion of H.B. 381 is codified at G.S. §122C-115 and G.S. §122C-115.1. Almost as a precursor to this part of H.B. 381, the General Assembly enacted legislation many years ago, codified at

G.S.

§153A-77(a), that allowed the Boards of Commissioners of counties with populations greater than 425,000 to assume direct control over boards of health, social services, and MH,DD,SAS. In essence, these larger counties were allowed to do what all counties may now elect to do: operate their own county MH,DD,SAS programs. However, G.S. §153A-77(a)

Eddie S. Winstead III, Esq. September 6, 2002 Page -2

retains its relevance because the amended G.S. §122C-115 provides that to the extent that there is a conflict, that G.S. §153A-77(a) will control.

We do not read these statutes as exempting any county from the service delivery mandates of Chapter 122C because G.S. §153A-77(a) only pertains to the governing structure of a county program and not to the provision of services. In other words, if there are any conflicts between these two code sections, they would involve procedural or governance issues, not provision of service issues. It is also noted that North Carolina courts would seek to minimize conflicts when interpreting these sections. Our courts have held that statutes should be interpreted so as to avoid conflicts, “If possible, they are to be reconciled and harmonized.” Board of Education of Onslow County V. the Board of County Commissioners of Onslow County 240 N.C. 118; 81 S.E.2d 256; (1954). The Court will only resolve such questions, “If and when confronted by inescapable conflicts and inconsistencies....” Ibid. With that standard in mind we find that the courts would not construe G.S. §153A-77(a) as providing license to exempt a county from the mandates of Chapter 122C, because it would not find a conflict concerning the provision of services requirements.

Article II, Section 24(1)(a) of the North Carolina Constitution prohibits “any local, private, or special act or resolution...relating to health.” On behalf of the Board, as their attorney, you question whether G.S. §153A-77 is local legislation, on the premise that it effectively exempts Wake and Mecklenburg from the provisions of G.S. §122C. We respectfully disagree that G.S. §153A-77 effectively exempts any county from the provisions of 122C. It allows for an alternative governance process, but requires compliance with all the rules relating to the provision of services to clients. In short, Wake or Mecklenburg citizens have exactly the same mental health care provisions that Lee or Harnett citizens are entitled to. Statutes such as G.S. §122C-115 and G.S. §153A-77 that operate uniformly throughout the state are not unconstitutional local laws, even though there are different classifications based upon population. McIntyre v. Clarkson, 254 N.C. 510,518,119 S.E. 2d 888, 894 (1961).

We hope that this advisory opinion will be useful to you. Please let us know if you have additional questions concerning this matter.